Workplace injuries happen every day, especially if you work in a place like a construction site. That’s why Florida employers are required to have workers’ compensation insurance. As the state’s Fourth District Court of Appeal recently explained in Gorham v. Zachry Industrial, Inc., however, an employer that provides workers’ comp to an injured employee is generally shielded from being later sued for the injuries. Unless, that is, the company directed the employee to do something it knew was exceedingly likely to cause harm.
Roger Gorham was injured in an accident while working as a rigger on a Florida Power and Light power plant construction site in Loxahatchee. He was part of a crew trying to lift and place a nine-ton wall using two cranes. Gorham was disconnecting shackles from the wall when it was caught in a gust of wind and dragged him to the ground.
The lift had been cancelled a day earlier because winds over 20 miles an hour created a danger that the wall would sway. According to various accounts of the incident, the wind was blowing at somewhere from 12 to 18 miles an hour when the crew attempted the lift the following day.
Gorham sued his employer, Zachry Industrial , for negligence. He claimed that the company should have cancelled the lift because of the wind and did not take adequate measures to protect the workers participating in the lift from injury. A trial court granted summary judgment in the company’s favor, ruling that Zachry was immune from suit under the state workers’ compensation law.
The Fourth District affirmed the decision on appeal. An employer who provides workers’ compensation to an injured employee is generally shielded from a later suit by the employee for the injuries suffered. “Essentially, under this no-fault system, the employee gives up a right to a common-law action for negligence in exchange for strict liability and the rapid recovery of benefits,” the court explained. This workers’ compensation immunity does not apply, however, to accidents caused by an activity that the employer knew was “virtually certain” to cause injury.
Here, Gorham failed to show that Zachry knew that the lift was virtually certain to cause injury “based on prior similar accidents or explicit warnings specifically identifying a known danger.” Although some evidence indicated that the project foreman may have failed to take a wind reading prior to attempting the lift, the court said there was no proof that he allowed the lift to happen knowing it was likely to cause an injury. Indeed, according to the court, the lift was completed later the same day without incident.
“The employer’s conduct may be grossly negligent, but… it is not intentional,” the court said.
If you or a loved one was recently injured in a construction accident and are interested in pursuing a claim, contact the South Florida personal injury attorneys at Anidjar & Levine today. We have helped numerous victims get back on their feet after sustaining serious injuries in construction site accidents. Our lawyers represent clients throughout South Florida, including in Boca Raton, Hollywood and Pompano Beach.
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